Citation Nr: 1019504 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 09-09 564 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for left ankle disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD B.Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to May 1985. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2008 rating decision in which the RO denied service connection for a resolved left ankle sprain. In June 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2009. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim have been accomplished. 2. While service treatment records show that the Veteran suffered a left ankle injury in January 1985, no chronic left ankle disability was demonstrated during active service, and the Veteran has not alleged a continuity of left ankle symptoms since service. 3. The Veteran sustained a distal fibular fracture with an avulsion of the medial malleolus and disruption of the ankle mortis in August 2006, and competent, probative evidence attributes the Veteran's current disability to his post- service injury. CONCLUSION OF LAW The criteria for service connection for a left ankle disability are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an August 2007 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also included information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The May 2008 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the August 2007 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, private treatment records, and the report of a January 2008 contract VA examination. Also of record and considered in connection with this matter are various written documents provided by the Veteran, his family, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record on the claim for left ankle disability is warranted. As will be discussed below, the service connection claim is being denied because the preponderance of evidence of a nexus between the Veteran's left ankle and military service weights against the claim. On his VA Form 9, the Veteran argued that VA does not have his complete service treatment records which would indicate how serious his injury actually was. A review of the Veteran's service treatment records, however, indicates that the file is complete. Records documenting the Veteran's in-service left ankle sprain are chronological from the time of injury to the time of release to full duty. An x-ray of the left ankle is of record. As there is no indication that any service treatment records are missing, further RO action in this regard is not warranted In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background Service treatment records reflect that, in January 1985, the Veteran suffered a moderate to severe left ankle sprain after he twisted his left ankle while jogging. On examination, the Veteran had tenderness in his left ankle. He had pain and limitation with active and passive range of motion. Edema was noted on the lateral aspect. The whole ankle was tender. Drawer sign was negative. The Veteran presented for a follow-up orthopedic appointment 10 days after his injury, complaining of swelling and pain. Mild effusion was noted. The Veteran had moderate medial and lateral edema and limited range of motion. Drawer sign was negative. The Veteran was tender diffusely medially and laterally. He was diagnosed with moderate-severe ankle sprain. X-rays were negative for a fracture. The Veteran was instructed to continue ACE wraps and crutches. Casting and physical therapy were considered. The physician's assistant issued the Veteran a left ankle profile, which was to last for three weeks. In February 1985, the Veteran presented for another follow-up appointment. The Veteran was instructed on range of motion exercises to improve his strength. Mild swelling at the lateral malleolus was noted. No effusion or tenderness was found. Cane ambulation, warm whirlpool, tubing for ankle strengthening and calf stretches were recommended. Running and jumping were restricted, but the Veteran was instructed to go to physical therapy for rehabilitation. Weeks later, the Veteran reported only minor pain. The physical therapist noted that the Veteran seemed to be doing well. The Veteran's profile was extended. In March 1985, the Veteran reported for physical therapy, stating that his left ankle continued to slowly improve. He reported, however, that his ankle still felt relatively unstable with several recent episodes of minor twisting accidents. Pain during running was noted. Range of motion was normal. Minimal tenderness was found on palpation. The Veteran was discharged to full duty at the end of March. No further complaints were made regarding this injury. On examination at separation, the Veteran's lower extremities were normal. On his Report of Medical History at separation, the Veteran marked that he previously or currently had swollen or painful joints. Bone, joint, or other deformities, broken bones, and foot trouble were denied. Private treatment records from August 2006 reflect that the Veteran sustained a twisting injury to his left ankle in August 2006. He had immediate onset of pain with subsequent soft tissue swelling and inability to weight bear. On examination at the emergency room, the Veteran was found to have sustained an avulsion from his medial malleolus along with an oblique fracture of the distal fibula at the level of mortise and associated disruption of the mortise with the widening of the ankle mortise medially. An open reduction with internal fixation of the left ankle bimalleolar fracture was performed in August 2006. Past medical history was only described as hypertension and gastroesophageal reflux disease. On VA contract examination in January 2008, the Veteran reported that during service he suffered a severe strain of the left ankle, and when physical therapy failed, the Veteran was placed in a cast for several weeks. He was subsequently released and able to return to full duty. The Veteran did not receive any additional treatment for this left ankle until he sustained a bimalleolar fracture in August 2006. Since the injury, his pain had worsened, and he had recurrent episodes of pain and swelling worsened with prolonged weight- bearing activities. On physical examination, the left ankle was remarkable for very mild tenderness to palpation and slight welling on the dorsolateral aspects. However, no other deformities were noted, and there was no ankylosis. Range of motion was full. Left ankle x-ray reveal an injury to tibia and fibula with plate and screw fixation of the distal fibula and calcaneal spur. The physician diagnosed the Veteran with left ankle sprain, resolved, bilateral malleolar fracture left ankle postoperative with residual scars, pain and swelling, and left foot heel spur. Indicating that he had reviewed the Veteran's entire claims file, including his service treatment record, the physician noted that it was not until the August 2006 fracture incident after the Veteran was out of service that he received any treatment for his left ankle. The physician described the Veteran's August 2006 injury was significant, involving fractures of the tibia and fibula. Accordingly, he opined that the Veteran's current ankle disability was not due to the left ankle injury he sustained in service. Rather, his current left ankle disability was due to the non-service connected ankle fracture he sustained in August 2006. In a January 2008 addendum, the physician noted as his rationale that the Veteran recuperated from his left ankle injury in 1985 and returned to full duty, and there was no evidence that he received any additional treatment until August 2006 when he sustained a fracture to his left ankle, requiring surgery. Thus, he opined that it was more likely than not that the Veteran's current left ankle symptoms were due to his nonservice-connected injury, as opposed to his left ankle sprain. The Veteran submitted an undated private opinion from a treating nurse practitioner. She noted that the Veteran related to her an injury that occurred in his left lower leg/ankle while in military service. His left lower extremity showed a large number of varicosities, which were ropy and protuberant in appearance. The Veteran did have intermittent difficulty with the left leg, to include swelling and tenderness. She noted that there was concern that based on the asymmetric appearance of his two legs, and the fact that his right leg was having minimal varicosities and no difficulty with swelling, this implied that the left leg abnormalities were secondary to his injury during military service. In a follow-up note dated in June 2008, the nurse practitioner noted that the Veteran's left ankle injury was most likely related to his military service injury than not related to it. The Veteran argues that his in-service left ankle sprain was worse than indicated in the service treatment records, and he was placed in a full leg cast when physical therapy failed. The Veteran has also submitted statements from family members on his behalf, indicating that his brother and mother observed him in a full leg cast during service. III. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for service connection for left ankle disability must be denied. As indicated, while service treatment records show that the Veteran suffered a left ankle injury in January 1985, no chronic left ankle disability was demonstrated during active service. In this case, although the Veteran and his family members are competent to state that he had a full leg cast during service, the Board finds that these statements are not credible. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, The Veteran's service treatment records clearly indicate that the physicians considered a cast for his left ankle sprain, but chronological records from the date of injury in January 1985 to the date of release to full duty in March 1985 (including x-rays) do not indicate that the Veteran was ever placed in a cast or ever sustained a fracture of his left ankle during service. Although the Veteran asserts that physical therapy did not help his ankle, the Veteran was released to full duty in March 1985 with no follow-up complaints; at separation, his lower extremities were marked as normal. The Board also notes that there is no continuity of symptoms since separation from service. While the Veteran is competent to report a continuity of symptomatology, he has not specifically stated that his symptoms have existed since service. See Charles v. Principi, 16 Vet. App. 370 (2002). At his January 2008 VA contract examination, the Veteran reported that he was able to return to full duty, and he denied seeking any additional treatment for his ankle until his August 2006 fracture. Since his fracture, he complained of worsening pain. Moreover, when the Veteran fractured his ankle in August 2006, he did not report any prior left ankle injuries or recurrent left ankle pain when he reported his medical history. The Veteran does not allege that he has continuously suffered left ankle pain since service. Moreover, the first documented evidence of left ankle disability was in August 2006-over 21 years after the Veteran's service, after a subsequent fracture. The Board also notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the Board finds that the most probative medical opinion evidence on the question of whether there exists a medical nexus between the Veteran's current left ankle disability and service, to include the injury noted therein. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds that the VA contract examiner's opinion in which he found no relationship between the Veteran's January 1985 left ankle sprain and his current left ankle disability due to his August 2006 fracture, the most probative medical opinion on this point. The physician's opinion was based upon full consideration of the Veteran's service and post-service records, including the Veteran's assertions, as well as supported by stated rationale. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Gbrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). Thus, the Board accepts this opinion as probative evidence on the medical nexus question. In regard to the private nurse practitioner's opinion, the Board finds that such opinion was based solely on a history provided by the Veteran, which lacks credibility. Significantly, the Veteran failed to divulge that he recently had a severe bilateral malleolar fracture of the left ankle, for which he underwent an open reduction with internal fixation. The nurse practitioner based her opinion solely on the Veteran's history, in which he indicated that he had only one injury to his left ankle-his in-service sprain. Therefore, the nurse practitioner's opinion must be afforded little, if any, evidentiary weight. As a medical opinion can be no better than the facts alleged by the Veteran, an opinion based on an inaccurate (or unsubstantiated) factual premise has limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993). Consequently, because that the Veteran clearly failed to provide the nurse practitioner with his entire relevant left ankle history, the Board cannot attach any significant probative value to a medical opinion that is clearly based on an incomplete (and, hence, inaccurate) history. In short, the most persuasive medical opinion evidence weighs against the claim. Finally, as for any direct assertions by the Veteran, his representative, and/or his family that there exists a medical nexus between current left ankle disability and the Veteran's military service, such evidence provides no basis for allowance of the claim. As indicated above, the matter on which this claim turns is within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran, his representative, and his family are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for left ankle disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for left ankle disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs